A concert attendee filed suit against a band's lead singer based on the singer's alleged "onslaught" of blows to the attendee's face, head, and body over a dispute. However, the singer's claimed that the confrontation only became violent when the attendee threw the first punch.
Notable Timestamps
[ 00:25 ] - The singer tendered the suit to his insurer, who agreed to defend under a reservation of rights, but is there a duty to defend?
[ 01:25 ] - Seventies, eighties, nineties? The crew chats concerts.
[ 02:30 ] - This scenario is based on New York Marine and General Ins. Co. v. Ness, 2021 WL 510624 (E.D. Cal. 1/12/21), linked below.
[ 03:30 ] - "Four Corners" means looking only at the Complaint, and "Eight Corners" means looking at the insurance policy as well. Both phrases refer to ignoring outside evidence and focusing on the claims made for the purposes of determining the Duty to Defend.
[ 04:30 ] - The court determined that the insured's claims raised a factual issue about the insured's intent. The exclusion for Expected or Intended Injury would not apply in cases of self-defense.
[ 05:45 ] - The court found that when there are extrinsic facts from the insured, it is incorrect to assume that only the attendee's allegations matter, so they found a duty to defend.
[ 06:15 ] - Courts might sometimes punish "creative pleading", but nevertheless often Complaints will include allegations of negligence, which in this case would have prevented a coverage dispute.
[ 08:30 ] - States treat "extrinsic evidence rules" differently. Texas courts allow evidence that solely addresses coverage and does not contradict the facts in the Complaint. This scenario would fail the second prong.
[ 09:45 ] - Florida would not permit an insurer to allege extrinsic evidence to dispute the duty to defend, whereas Hawaii or New York might. Some caselaw suggests that if an exclusion clearly applies, extrinsic evidence may be allowed.
[ 12:20 ] - Expediency drives many of these rules, as well as insurers' decisions between Declaratory Judgment and denial.
[ 13:20 ] - One South Carolina case required an insurer to look at extrinsic evidence.
[ 14:30 ] - Can an insurer use an endorsement to permit the introduction of extrinsic evidence in disputes about the duty to defend? A Washington court has yet to answer this question in Developers Surety and Indemnity Co. v. Alis Homes, LLC, 2018 WL 1792182 (W.D. Wash. 4/16/18), reviewed at PLRB, Com. Liab. Ins. L. Rev. 5511 (2018). https://www.plrb.org/legacy-documents?DN=66854
[ 15:40 ] - A California case held that extrinsic evidence could establish a duty to defend-- that's this scenario, linked below.
[ 17:35 ] - Michele provides a recap of the scenario and the points above.
Your PLRB Resources
On the admissibility of extrinsic evidence regarding an insurer's duty to defend, Commercial General Liability Policy Annotation Key GL37 - https://www.plrb.org/legacy-documents?DN=43173
Expected or intended injury exclusion, see Commercial General Liability Policy Annotation Key GL71 - https://www.plrb.org/legacy-documents?DN=43211
Law Review California Federal District Case - https://www.plrb.org/documents/new-york-marine-and-general-ins-co-v-ness/
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